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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Pittman Broadcasting Services, LLC Licensee of Station
WUUU-FM and Owner of Antenna Structure Number 1064240, Franklinton,
Louisiana ) ) ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00002372 NAL/Acct. No.:
201332620003 FRN: 0004330825 Facility ID No.: 22992
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 30, 2013 Released: May 30, 2013
By the Deputy Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Pittman Broadcasting Services, LLC (Pittman), licensee of
Station WUUU-FM (Station) and owner of antenna structure number
1064240 (the Antenna Structure), in Franklinton, Louisiana, apparently
willfully and repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended (Act),^ and Sections 11.35(a) and (b), 17.50,
and 17.51(a) of the Commission's rules (Rules),^ by failing to (1)
maintain a functioning Emergency Alert System (EAS) equipment and
logs; (2) clean or repaint the Antenna Structure as often as necessary
to maintain good visibility; and (3) exhibit required antenna
structure lighting. We conclude that Pittman is apparently liable for
a forfeiture in the amount of twenty-two thousand, five hundred
dollars ($22,500). In addition, we direct Pittman to submit, no later
than thirty (30) calendar days from the release date of this NAL, a
statement signed under penalty of perjury stating that the Station's
EAS equipment is operational, and that the Station has taken measures
to come into compliance with the Commission's antenna structure
painting and lighting rules.
II. BACKGROUND
2. On June 1, 2012, in response to a complaint that the Station's EAS
equipment was not operational, agents from the Enforcement Bureau's
New Orleans Office (New Orleans Office), accompanied by the Station's
operations manager, conducted an inspection of the main studio for the
Station. The agents observed that the operations manager could not run
a test of the EAS equipment, because the equipment would not power on.
The operations manager stated that a lightning strike about two weeks
prior must have damaged the EAS unit, but there was no record of the
damage in the Station's logs. In addition, the Station had no records
of any monthly EAS tests being received or retransmitted since October
27, 2011, and of any weekly tests being transmitted after May 12,
2012.
3. The Antenna Structure is 68.2 meters in overall height above ground
and is required to be painted and lighted.^ During the inspection on
June 1, 2012, the agents observed that the paint on the structure was
severely faded and chipped throughout the structure. The paint on the
Antenna Structure had deteriorated to such a degree that the agent was
unable to discern alternating bands of color on the structure from any
distance. The agents inquired about the status of the Antenna
Structure's lights and the Station's light monitoring practices. The
operations manager stated that the Antenna Structure's lights were
working and that he or the Station's owner visually observed the
structure's lights in the evening, because the remote monitoring
system had been damaged in a lightning strike.
4. On June 4 and 5, 2012, an agent from the New Orleans Office observed
that the top beacon of the Antenna Structure was not lit at or after
sunset.^ On June 14, 2012, Pittman's owner spoke to an agent on the
telephone and admitted that the top beacon of the Antenna Structure
had been out since September 2011. Pittman's owner stated that he
notified the FAA of the outage in September 2011, but had not done so
since.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty.^ Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law.^ The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act,^ and
the Commission has so interpreted the term in the Section 503(b)
context.^ The Commission may also assess a forfeiture for violations
that are merely repeated, and not willful.^ The term "repeated" means
the commission or omission of such act more than once or for more than
one day.^
A. Failure to Maintain Operational EAS Equipment and Logs
6. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source.^ The EAS enables
the President and state and local governments to provide immediate
communications and information to the general public.^ State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from the sources such as the
National Weather Service or local emergency management officials.^
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
station. As the nation's emergency warning system, the EAS is critical
to public safety, and we recognize the vital role that broadcasters
play in ensuring its success. The Commission takes seriously any
violations of the Rules implementing the EAS and expects full
compliance from its licensees.
7. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment are installed and operational so
that the monitoring and transmitting functions are available during
the times the station is in operation.^ Section 11.35(b) of the Rules
states that, "[i]f the EAS Encoder or EAS Decoder becomes defective, .
. . [e]ntries shall be made in the broadcast station log . . . showing
the date and time the equipment was removed and restored to service."^
Section 73.1820(a)(1)(iii) of the Rules requires licensees to create
an entry for each test and activation of the EAS in the station log or
in a special EAS log.^ On June 1, 2012, agents from the New Orleans
Office observed, when the station was in operation, that the Station's
EAS equipment was incapable of powering on. The Station had no
evidence or logs that the Station's EAS equipment had received or
retransmitted a monthly EAS test after October 27, 2011, or
transmitted a weekly EAS test after May 12, 2012. Moreover, the
Station's EAS logs contained no entries after October 27, 2011,
regarding defective EAS equipment. Based on the evidence before us, we
find that Pittman apparently willfully and repeatedly violated
Sections 11.35(a) and (b) of the Rules by failing to maintain
operational EAS equipment and complete EAS logs.
B. Failure to Comply with Antenna Structure Painting and Lighting
Requirements
8. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission.^ Section 17.50 of the Rules states that "[a]ntenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility."^ Section
17.51(a) of the Rules states that "[a]ll red obstruction lighting
shall be exhibited from sunset until sunrise unless otherwise
specified."^
9. On June 1, 2012, agents from the New Orleans Office observed that the
paint on the Antenna Structure was severely faded and did not provide
good visibility. The condition of the paint had deteriorated such that
the agents were unable to discern alternating bands of color on the
structure from any distance. On June 4 and 5, 2012, an agent also
observed that the top beacon on the Antenna Structure was extinguished
at and after sunset. Pittman's owner admitted that the top beacon had
been dark since September 2011. Based on the evidence before us, we
find that Pittman apparently willfully and repeatedly violated Section
303(q) of the Act and Sections 17.50 and 17.51(a) of the Rules by
failing to (1) clean and repaint the Antenna Structure to maintain
good visibility, and (2) exhibit required red obstruction lighting on
the Antenna Structure.
C. Proposed Forfeiture and Reporting Requirement
10. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to maintain
functioning EAS equipment is $8,000, and for failing to comply with
antenna structure prescribed lighting and painting specifications is
$10,000.^ In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, any history of prior offenses,
ability to pay, and other such matters as justice may require.^ In
doing so, we find that the facts and circumstances of this case
justify an upward adjustment of the base forfeiture amount for the EAS
violations. Today, we issued an enforcement action involving an EAS
violation at Station KVOL-AM, which is another broadcast station owned
by Pittman.^ Agents from the New Orleans Office observed that Station
KVOL-AM did not have operational EAS equipment on April 27, 2012.
Pittman was aware of the violation and admitted that Station KVOL-AM
had been without operational EAS equipment for several months, yet
failed to take immediate steps to ensure that Station WUUU-FM had an
operational EAS.^ Accordingly, the current violation represents the
second EAS violation found at a Pittman-owned station, warranting an
upward adjustment in the amount of $4,000. Furthermore, Pittman's
failure to maintain complete EAS logs warrants an additional upward
adjustment in the amount of $500.^ Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Pittman is apparently liable for a
total forfeiture in the amount of $22,500, consisting of the
following: $12,500 for the EAS violations and $10,000 for the antenna
structure lighting and painting violations.
11. We direct Pittman to submit a written statement, pursuant to Section
1.16 of the Rules,^ signed under penalty of perjury by an officer or
director of Pittman, stating that the Station has complied with the
Commission's EAS and antenna structure painting, lighting, and
monitoring requirements.^ The statement should specify any steps taken
to come into compliance, including the timeframe for the (1) repair or
replacement of the Station's EAS equipment, (2) repair or replacement
of the structure's top beacon, and (3) repainting of the structure.
Pittman must also state that, until the lights are repaired or the
structure is dismantled, an employee of Pittman will ensure that the
FAA maintains an active NOTAM regarding the structure. This statement
must be provided to the New Orleans Office at the address listed in
paragraph 17, below, within thirty (30) calendar days of the release
date of this NAL.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Pittman Broadcasting
Services, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-two thousand, five hundred dollars
($22,500) for violations of Section 303(q) of the Act and Sections
11.35(a) and (b), 17.50, and 17.51(a) of the Rules.^
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order ,
Pittman Broadcasting Services, LLC SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. IT IS FURTHER ORDERED that Pittman Broadcasting Services, LLC SHALL
SUBMIT a written statement, as described in paragraph 11, above,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau, South
Central Region, New Orleans Office, Room 460, 2424 Edenborn Ave.,
Metairie, Louisiana 70001. Pittman shall also e-mail the written
statement to [1]SCR-Response@fcc.gov.
15. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Pittman Broadcasting Services, LLC shall
also send electronic notification on the date said payment is made to
[2]SCR-Response@fcc.gov. Regardless of the form of payment, a
completed FCC Form 159 (Remittance Advice) must be submitted.^ When
completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters "FORF" in block number
24A (payment type code). Below are additional instructions you
should follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
16. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
17. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, New Orleans Office, Room 460, 2424 Edenborn Ave.,
Metairie, Louisiana 70001, and include the NAL/Acct. No. referenced in
the caption. Pittman Broadcasting Services, LLC also shall e-mail the
written response to [3]SCR-Response@fcc.gov.
18. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting principles (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Pittman Broadcasting
Services, LLC at 307 S. Jefferson Ave., Covington, Louisiana 70433.
FEDERAL COMMUNICATIONS COMMISSION
Loyd Perry
Deputy Regional Director
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. SS 11.35(a), 11.35(b), 17.50, 17.51(a).
^ See 47 C.F.R. S 17.21(a) (requiring antenna structures more than 60.96
meters in height above the ground to be painted and lighted). See also
Antenna Structure Registration database for antenna structure number
1064240.
^ On June 4, 2012, an agent confirmed with the Federal Aviation
Administration (FAA) that there was no current Notice to Airmen (NOTAM)
listed for the Antenna Structure. The FAA issued a NOTAM on June 4, 2012,
after being notified of the outage by the agent. See 47 C.F.R. S 17.48(a)
(requiring owners to notify the FAA immediately of any known
extinguishment of a top beacon not corrected within 30 minutes).
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
^ 47 C.F.R. SS 11.11, 11.41.
^ 47 C.F.R. SS 11.1, 11.21.
^ 47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local, and relay EAS
sources. 47 C.F.R. S 11.21.
^ 47 C.F.R. S 11.35(a).
^ 47 C.F.R. S 11.35(b).
^ 47 C.F.R. S 73.1820(a)(1)(iii).
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.50.
^ 47 C.F.R. S 17.51(a).
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ Pittman Broadcasting Services, LLC, File No. EB-FIELDSCR-12-00002104,
Notice of Apparent Liability for Forfeiture and Order, DA 13-1244 (Enf.
Bur. May 30, 2013).
^ Id. at 1-2, PP 3-4.
^ See Iglesia Cristiana Ebenezer of Greenville, Texas, Notice of Apparent
Liability for Forfeiture and Order, DA 13-1004, 2013 WL 1881507 (Enf. Bur.
May 6, 2013) (imposing $1,000 upward adjustment for failure to maintain
EAS logs).
^ 47 C.F.R. S 1.16.
^ See 47 C.F.R. S 17.47 (requiring antenna structure owners to observe
visually antenna structure lights once every 24 hours to ensure proper
functioning). Pittman's operations manager stated on June 1, 2012, that
the structure's lights were functioning. However, Pittman's owner stated
on June 14, 2012, that the top beacon had been dark since September 2011.
Pittman's operations manager stated that he and Pittman's owner were
responsible for monitoring the Antenna Structure's lights. Given the
discrepancy regarding the lighting's status, we are concerned that Pittman
may not be complying with the antenna structure monitoring requirements.
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 11.35(a), 11.35(b), 17.50, 17.51(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
Federal Communications Commission DA 13-1245
3
Federal Communications Commission DA 13-1245
References
Visible links
1. mailto:SCR-Response@fcc.gov
2. mailto:SCR-Response@fcc.gov
3. mailto:SCR-Response@fcc.gov